Master Service Agreement
THIS MASTER SUBSCRIPTION AGREEMENT AND ANY ORDER FORM AND ANY STATEMENT OF WORK GOVERNS CUSTOMER’S USE OF TRIFIN LABS LLC’S SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on April 9, 2021. It is effective between Customer and TriFin Labs LLC as of the date of Customer’s accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement and any Order Form entered into hereunder.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) solely to the extent that they have entered into Order Forms or Statements of Work hereunder.
“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Third Party Products and Non-TriFin Applications.
“Documentation” means the applicable Service’s documentation and its usage guides and policies, as updated from time to time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-TriFin Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Customer or a third party. Non-TriFin Applications, other than those obtained or provided by Customer, will be identifiable as such.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and TriFin or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Professional Services” means services provided by or on behalf of TriFin pursuant to a Statement of Work, and may include without limitation, support services, implementation services, and custom development services.
“Software Services” means the products and services that are ordered by Customer under an Order Form, Statement of Work, or online purchasing portal, and made available by TriFin, including associated TriFin offline or mobile components, as described in the Documentation. “Software Services” exclude Professional Services, Third Party Products and Non-TriFin Applications.
“Third Party Product” means information, products, services and other items obtained by TriFin from publicly available sources or its third party service providers and made available to Customer through the Services, or pursuant to an Order Form, as more fully described in the Documentation.
“TriFin” means TriFin Labs LLC.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased Services hereunder, and to whom Customer (or, when applicable, TriFin at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
2. TRIFIN RESPONSIBILITIES
2.1 Provision of Services. TriFin will (a) make the Software Services and Third Party Products available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation (b) provide Professional Services solely to the extent set forth in one or more Statements of Work, and (c) provide the Services in accordance with laws and government regulations applicable to TriFin’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Forms and Statements of Work.
2.2 Protection of Customer Data. TriFin will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation found: https://enlythealth.com/privacy-policy/. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The Services do not replace the need for Customer to maintain regular data backups or redundant data archives and TriFin has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data. TriFin will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will may delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 TriFin Personnel. TriFin will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with TriFin’s obligations under this Agreement, except as otherwise specified in this Agreement.
3. USE OF SERVICES AND THIRD PARTY PRODUCTS
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Third Party Products are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by TriFin regarding future functionality or features.
3.2 Usage Limits. Services and Third Party Products are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, TriFin may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding TriFin’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Third Party Products promptly upon TriFin’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data (and obtaining the rights for TriFin to use it with respect to the Services), Customer’s use of Customer Data with the Services, and the interoperation of any Non-TriFin Applications with which Customer uses Services or Third Party Products, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Third Party Products, and notify TriFin promptly of any such unauthorized access or use, (d) use Services and Third Party Products only in accordance with this Agreement, Documentation, and [the End User License Agreement], Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-TriFin Applications with which Customer uses Services or Third Party Products. Any use of the Services in breach of the foregoing by Customer or Users that in TriFin’s judgment threatens the security, integrity or availability of TriFin’s services, may result in TriFin’s immediate suspension of the Services, however TriFin will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions. Customer will not (a) make any Service or Third Party Products available to anyone other than Customer or Users, or use any Service or Third Party Products for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Third Party Products, or include any Service or Third Party Products in a service bureau or outsourcing offering, (c) use a Service or Non-TriFin Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material (including Customer Data), or to store or transmit material (including Customer Data) in violation of third-party privacy rights, (d) use a Service or Non-TriFin Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Third Party Products or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Third Party Products in a way that circumvents a contractual usage limit, or use any Services to access or use any of TriFin intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Third Party Products except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Third Party Products, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Third Party Products or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.5 Removal of Third Party Products and Non-TriFin Applications. If Customer receives notice that Third Party Products or a Non-TriFin Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in TriFin’s judgment continued violation is likely to reoccur, TriFin may disable the applicable Third Party Products, Service and/or Non-TriFin Application. If requested by TriFin, Customer shall confirm such deletion and discontinuance of use in writing and TriFin shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if TriFin is required by any third party rights holder to remove Third Party Products, or receives information that Third Party Products provided to Customer may violate applicable law or third-party rights, TriFin may discontinue Customer’s access to Third Party Products through the Services.
4. NON-TRIFIN PRODUCTS AND SERVICES
4.1 Non-TriFin Products and Services. TriFin or third parties may make available third-party products or services, including, for example, Non-TriFin Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-TriFin provider, product or service is solely between Customer and the applicable Non-TriFin provider. TriFin does not warrant or support Non-TriFin Applications or other Non-TriFin products or services, whether or not they are designated by TriFin Labs LLC as “certified” or otherwise, unless expressly provided otherwise in an Order Form. TriFin is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-TriFin Application or its provider.
4.2 Integration with Non-TriFin Applications. The Services may contain features designed to interoperate with Non-TriFin Applications. TriFin cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-TriFin Application ceases to make the Non-TriFin Application available for interoperation with the corresponding Service features in a manner acceptable to TriFin.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay all fees specified and agreed on in Order Forms.
5.2 Invoicing and Payment. Order Forms will determine all underlying terms of payment. Customer is responsible for providing complete and accurate billing and contact information to TriFin and notifying TriFin of any changes to such information.
5.3 Overdue Charges. If any invoiced amount is not received by TriFin by the due date, then without limiting TriFin’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) TriFin may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized TriFin to charge to Customer’s credit card), TriFin may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, TriFin will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending Services to Customer.
5.5 Payment Disputes. TriFin will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. TriFin’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If TriFin has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, TriFin will invoice Customer and Customer will pay that amount unless Customer provides TriFin with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TriFin is solely responsible for taxes assessable against TriFin based on its income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, TriFin, its Affiliates, its licensors and Third Party Products providers reserve all of their right, title and interest in and to the Services and Third Party Products, including all of their related intellectual property rights, provided that TriFin and Customer may agree in a Statement of Work that certain deliverables from TriFin shall be owned by Customer and the rights with respect thereto shall be set forth in the applicable Statement of Work. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Access to and Use of Third Party Products. Customer has the right to access and use applicable Third Party Products subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3 License by Customer to TriFin. Customer grants TriFin and its Affiliates a worldwide, limited-term license to host, copy, use, transmit, and display any Non- TriFin Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for TriFin to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-TriFin Application with a Service, Customer grants TriFin permission to allow the Non- TriFin Application and its provider to access Customer Data and information about Customer’s usage of the Non-TriFin Application as appropriate for the interoperation of that Non-TriFin Application with the Service. Subject to the limited licenses granted herein, TriFin acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non- TriFin Application or such program code.
6.4 License by Customer to Use Feedback. Customer grants to TriFin and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of TriFin’s or its Affiliates’ products or services.
6.5 Federal Government End Use Provisions. TriFin provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of TriFin includes the Services and Third Party Products, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional TriFin services.
7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and will, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, TriFin may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non- TriFin Application Provider to the extent necessary to perform TriFin’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 TriFin Warranties. TriFin warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the minimum administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) TriFin will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non- TriFin Applications” section above and the continued provision of Third Party Products by Third Party providers, TriFin will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THIRD PARTY PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by TriFin. TriFin will indemnify, defend and hold harmless Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by TriFin in writing of, a Claim Against Customer, provided Customer (a) promptly gives TriFin written notice of the Claim Against Customer, (b) gives TriFin sole control of the defense and settlement of the Claim Against Customer (except that TriFin may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives TriFin all reasonable assistance, at TriFin’s expense. If TriFin receives information about an infringement or misappropriation claim related to a Service, TriFin may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching TriFin’s warranties under “TriFin Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations of TriFin do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by TriFin, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Third Party Products, a Non-TriFin Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
9.2 Indemnification by Customer. Customer will indemnify, defend and hold harmless TriFin and its Affiliates against any claim, demand, suit or proceeding made or brought against TriFin by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-TriFin Application provided by Customer, (c) the combination of a Non-TriFin Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (d) that, or arising from, Customer’s use of the Services or Third Party Products in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against TriFin”), and will indemnify TriFin from any damages, attorney fees and costs awarded against TriFin as a result of, or for any amounts paid by TriFin under a settlement approved by Customer in writing of, a Claim Against TriFin, provided TriFin (a) promptly gives Customer written notice of the Claim Against TriFin, (b) gives Customer sole control of the defense and settlement of the Claim Against TriFin (except that Customer may not settle any Claim Against TriFin unless it unconditionally releases TriFin of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against TriFin arises from TriFin’s breach of this Agreement, the Documentation or applicable Order Forms.
9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form (the “Initial Term”). TriFin agrees that it will not increase the price of Services set forth in the Order Form during the Initial Term unless specified limits are exceeded. TriFin may increase the pricing for Services upon written notice prior to any Renewal Term. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Third Party Products and Non-TriFin Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as TriFin retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Services, Third Party Products, other TriFin technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. TriFin and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Third Party Products in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between TriFin and Customer regarding Customer’s use of Services and Third Party Products and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, TriFin will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Governing Law, and Venue. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of Florida, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Tampa, Florida. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; (C) WAIVES ANY RIGHT TO TRIAL BY JURY; AND (D) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY FLORIDA LAW.
12.10 Notices. Each Party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile or email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other Party at the addresses set forth in the Order Form or Statement of Work (or to such other address that the receiving Party may designate from time to time in accordance with this section).
12.11 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.